CONCURRING OPINION OF JUDGE YUDKIVSKA

I am absolutely convinced that Article 14 was not violated in the present case. I do disagree, however, with my esteemed colleagues in the majority in their approach to the case. In particular , I cannot share the conclusion in paragraphs 68-69 that “ le requérant peut prétendre se trouver dans une situation comparable à celle des femmes détenues ” .

Whilst both men and women engage in reproduction, only women have the capacity to become pregnant and give birth, and this difference has its physical, psychological and emotional dimensions.

According to CEDAW General Recommendation No. 24 (20th session, 1999), “the health rights of women [should be addressed] from the perspective of women ’ s needs and interests [in view of] distinctive features and factors that differ for women in comparison to men, such as: (a) Biological factors ... such as their ... their reproductive function ... (c) Psychosocial factors that vary between women and men ... [ including] post-partum depression ... ”

Article 453 § 1 b) of CPP, which is the base for the applicant ’ s complaint under Article 14 of the Convention, appears to follow strictly the above recommendation. It covers a particular group - pregnant women and women who had recently gave birth, and most probably breast-feed. Naturally, they cannot be said to be in analogous situations as men – those who are expecting their child or fathers of a newborn . Men and women are equal, but they are not the same. There are fundamental biologically based differences related to their reproductive function that must be acknowledged in the law and accommodated by the law; and the impugned CCP provision, as well as number of international documents referred to in the judgment, address them. Gender equality does not mean that men and women are forced into sameness. Wrong perception of equality may identify it as sameness, which should not be promoted by a fight against discrimination.

The reproductive difference undoubtedly justifies legal recognition of a separate sphere for women that relates to childbirth. Much of scientific literature is written about mother-infant attachment, and infant ’ s dependence on a mother. A strength emotional bond is developed during 9 months of pregnancy; this bond pushes a child to seek direct physical contact precisely with a mother. Fœtus is affected by sounds of mother ’ s heartbeat, and after the birth this mot her ’ s heartbeat calms a baby. Mother s and infants are aligned literally at the level of the nervous system; touching by a mother and sounds of her heart are sources of comfort and safety feeling for a baby; that is why being with a mother after the birth is vitally important for a child and serves his/her best interests. Any father, however wonderful he might be, cannot provide these elements.

It is also widely recognized that the separation of a child from his/her mother in the first year of life causes significant disruptions in the child ’ s mental development, and this separation might leave an indelible imprint on his/her entire life. In this respect, the “attachment theory”, developed by the prominent British psychologist and psychoanalyst John Bowlby , serves guidance for accessing the best interest of a child.

Further, the World Health Organization in its global strategy on infant and young child feeding stresses on breastfeeding as “an unequalled way of providing ideal food for the healthy growth and development of infants ... [ and] ... an integral part of the reproductive process with important implications for the health of mothers”. It recommends exclusive breastfeeding for the first six months of life “to achieve optimal growth, development and health” and continuation for up to two years of age or beyond. Breastfeeding is an exclusive prerogative of women.

These significant elements were taken into account by the Romanian legislatu r e in order to serve the best interest of child ren. The majority accept that in paragraphs 76-77, but view it as part of the proportionality analysis rather than acknowledgment of a lack of “analogous situation”, which would be much more logical in my view.

I believe that the correct approach in the present case was to recognize that men and women who are parents of a newborn are distinguishable when it comes to the newborn ’ s needs, and that new mothers have different duties which thus require different legal remedies. Consequently, equality calls for a special treatment for pregnancy and birthing that apply to women in a sphere where men cannot supersede them or compete with them.

31 July 2017